Judge Zell answers questions

The trial of Daphne Wright on charges of first-degree murder, kidnapping and felony murder was Judge Brad Zell’s first capital case. In fact, it was the first capital case in Minnehaha County since the trial of Robert Leroy Anderson in 1999 – and that was a McCook County case that was transferred here, judge and all.

Zell sat down with the Argus Leader the day after jurors rendered their sentence of life in prison to talk about the trial – preparations, issues, the jury, the sentence.

It’s a rare look at a death penalty case from the inside.

Question: Because this was a capital case, how was it different from others?

Answer: We’ve handled other types of felonies. From the perspective of the court, … other than the penalty phase … it doesn’t take on a much different flavor, whether it be an aggravated assault case or a murder case. Everything is essentially the same. … When selecting the jury, we had other issues that elongated the selection process

Q: Were there any special court preparations?

A: I knew that we had a defendant who was deaf. Those type of arrangements, accommodations had to be made for interpreters. That’s not really special because I’ve had Spanish-speaking defendants. I’ve had Numar – an Arabic dialect out of Sudan, and that’s even more difficult than finding a deaf interpreter.

Q: How did you prepare?

A: The one thing that I started doing preparatory work on was that the state had indicated it may be seeking the death penalty. … You need to know what you’re going to be dealing with. … We started working early on jury questionnaires. … Mr. (Jeff) Larson said deaf is different, … different for attorneys, different for the court, different for court personnel.

Q: What background information did you seek?

A: The one thing I did was gather some of the South Dakota case law … The State vs. (Donald) Moeller, Moeller II we call it, was very instructive on jury selection and other issues. … (Charles) Rhines. … I think I also grabbed State vs. (Darrell) Hoadley. Those are very instructive cases. Although there haven’t been that many capital cases, any informational material you can (get, you) go back and glean to help you. … I’ve talked to the judges, … talked to a few of the attorneys … about jury selection, … not the substantive issues but procedural things, the way things are handled and such.

(Rhines and Moeller are on death row. Hoadley was convicted of a torture-murder, but was sentenced to life by a jury.)

Q: What kind of mental preparation was there for a capital case?

A: Judge Gene Paul Kean sat here for 25 years, and he was a prosecutor before that. … He never had one. … It requires a lot of work and a lot of patience, and you need to have, in my opinion, … mental fortitude. I knew there were going to be some gruesome photos. I knew there was going to be some stressful testimony, … to be ready for that emotionally and to keep my emotions that are human out of the formula, out of the mix. That’s the things I went through emotionally.

Q: What about the jury?

A: I think they’re great. Just in the last calendar year I think this might be my 12th jury trial. The body of a jury is just like a person. It has its own personality. Some trials are very short, so they don’t get to develop that personality. I haven’t found one jury … that hasn’t taken its role seriously and hasn’t come away with a real newfound respect for our form of government, not just our judiciary but our form of government. We truly get to sit in judgment of the acts of the defendant as a peer. This case exemplifies that. I did not talk the the jurors about what they decided or how they decided. But my sense is as they decided this case, … (they examined) what should our society consider in the form of punishment in this case? So they’re speaking for all of us. … I really admire them. They’ve been super. I have not had a bad jury. If you let the jury know that they’re a part of this very important process, they take it very seriously. … They take that duty to heart. … I really, really appreciate what they did.

We pluck those people out of their ordinary lives and then we ask them to do extraordinary things. That’s what makes it work.

Q: How were decisions on motions concerning interpreters made? Was it just, “This is good enough?”

A: It’s more than that. … I went through about a four-part test. Three of those parts came from the defense witnesses (law professor Michele LaVigne, Dr. McKay Vernon, who co-authored an article about the deaf in the criminal justice system). … On levels of intelligence, … Dr. Vernon testified that (Wright) was very smart. … Second, does she have a fluent form of communication? … She is very fluent in ASL. … The third level was the written language or comprehension level. … They said that was low for most people. However, for those folks who have gone through the same experiences as Daphne did, that was normal.

She’s smart, … she’s fluent … and she’s – for the written level of comprehension – normal.

The fourth element I looked at was the two hours of the video with the police interview. I watched that, not so much for the content, … but was she understanding the question, were her responses logical, was she struggling, … was she continually saying, “I don’t understand you?”

Using LaVigne and Vernon’s standards, Daphne did not appear to be a person who needed more.

But if she doesn’t understand, … the defense was told to stop the proceedings and see if they (could) explain.

Q: You’re human. How do you stay objective? Or did you develop conclusions?

A: If you’re the umpire for your child’s softball game and a strike is thrown, … you got to call a strike. That’s part of the black robe. I talked about that mental fortitude. … I knew in the case that I’m not a fact-finder. I have no interest whether the person’s acquitted or found guilty. … I’m the umpire. … I call the balls and the strikes, and I have the rulebook in my pocket.

I don’t (come to a conclusion about guilt or innocence) unless it’s tried before me without a jury. I don’t have to.

That’s the uniqueness of being a judge. That’s part of our job.

Q: What about the VanderGiesen family and the mother Dee’s statement before sentencing? Have you heard other such statements?

A: In the (Gary) Mulder case the sentencing was eight hours long. There were multiple victim impact statements, and the defendant addressed the family. In the Mulder case there were some. … A few were very angry and wanted retribution. … A few were very forgiving, much like Dee’s.

I thought it was wonderful. I wish we could see that in every case, but we don’t. When I offered Miss Wright the opportunity to speak, it wasn’t anything that would impact the court, but it’s for the opportunity if she wants it, to say whatever she wanted to say to the family or to the court or to the attorneys or to her family, her mom or her step-dad.

I thought Mrs. VanderGiesen’s final statement, I wish that happened in every case. That promotes healing. The line I like to use a lot is, “We should never forget, but we should forgive, work toward forgiveness.”

Q: There are some questions about the consistency of your sustaining or overruling objections. How do you answer those?

A: That’s hard to explain to folks that aren’t law trained. Certain questions that are asked. … The objection is that you haven’t laid the foundation … Then you go back and build the foundation. … Or relevancy. … Sometimes you allow some latitude in things. In some of those bench conferences, you ask, “Where are you going with this?” Like Dr. (Michael) McGrath, I think was one of them. There was an objection. … I said, “Jeff, where are you going with this?” If you’re not law trained, you don’t necessarily understand?

Q: Were you surprised by the sentence?

A: No. I agree with what Dave Nelson said, that there is no wrong. That’s my belief in a jury. They made a statement for us, and I have no problem with it. Even if I did, it wouldn’t matter. They made the decision that was right for them. They spoke for our community, and I respect it.

Q: The life sentence cuts out one avenue of appeal, doesn’t it?

A: Yes, there’s things we won’t know. … What we won’t know because of the life decision is where does this fall in the scheme of death penalty cases? … The state Supreme Court mandatorily has to compare them all – proportionally. Moeller – he raped, slashed, raped the corpse of a 9-year-old girl. … Then we have Hoadley, Piper and Page. We won’t know if the Supreme Court would have said, “Here’s Page, Moeller, Rhines, Robert Leroy Anderson. … They’re just above the threshold (for a death sentence), … (and this case), it’s in that level. Or not.” If the death sentence is disproportionate (to the crime and other death sentences), we throw it out. That’s one thing we lose (having that answer), … and that’s OK. That’s not the jury’s job.

(( Source:  Argus Leader ))